Observatory on the Respect of Fundamental Rights in Europe

C.I.R.D.C.E.

Observatory on the respect of fundamental rights in Europe

Newsletter n.5

The web-site presents to its readers the fifth newsletter.

As in the previous occasions, the site offers the usual updating on the European Court’s jurisprudence and on the European Union and Council of Europe’s acts relevant to the issue of the protection of fundamental rights’.

As our readers know well, both decisions and documents are classified considering the “rights” stated in the Charter of Nice.

With regard to the Court of Strasbourg, we highlight in particular the Ekeberg vs Norway decision on the impartiality of judges, as well as three decisions concerning freedom of expression: Ormanni vs Italy and Sarocki vs Poland of 17.7.2007 and Diena and Ozolins vs Latvia of 12.7.2007.

Concerning the European legislation, we would like to recall the Council’s decision of 12.6.2007 on the Schengen information system of second generation (SIS II) and the Council’s decision of 23.7.2007 which approves the EU-USA Agreement on passengers’ data treatment and transmission by airline companies to the American Ministry for Internal Security. With regard to other acts of European Union we highlight the Resolutions of the European Parliament of 11.7.2007 on the detachment of workers in the services field and on “modernization of labour law”, which recalls the Charter, and in particular the prohibition of unjustified dismissal, the Report of the European Commission of 11.7.2007 on the execution of the framework decision on the European Arrest Warrant, and the first document released by Agency of the European Union on fundamental rights, concerning racism and xenophobia in Member States in 2006.

With regard to the Court of Justice, we recall the Court’s decisions on the “ne bis in idem” (C-288/05 and C-367/05), on the authority of the res iudicata (C-119/05), on the freedom of movement for workers (C-212/05 and C-213/05, concerning the allowance for children’s education to a cross-border worker); the Court’s decision in the case C-255/05 in environmental matter; the conclusions of the Advocate General on the protection of web users’ privacy (C-275/06), about the legitimacy of a provider’s refusal to communicate the names of its customers in case of violation of property laws, on the right to access to documents (C-64/05 P), about the interpretation of art. 4 par. 5 of Regulation n. 1049/2001, and on prohibition of discriminations against a homosexual couple (C-267/06) concerning reversionary annuity.

In the international panorama, we highlight the deeply discussed decision of the USA Supreme Court of 28.6.2007 with regard to reserved quota for minorities in primary schools with the scope of racial integration and an ILO document: the Global Report of 10.5.2007 on “Equality at work: tackling the challenges”.

Concerning national jurisprudences, we recall three House of Lords’decisions (respectively of 24.1.2007, 28.2.2007, 14.3.2007) on the effectiveness of ECHR’s norms; the French Court of Cassation’s decision of 16.2.2007 on the restrictions to freedom of expression in case of serious offensive expressions towards religious minorities; the Spanish Constitutional Court’s decision of 4.6.2007 on the protection of rights of the person which is going to be extradited, also in the light of the ECHR; the decree of the Gerona’s investigating judge that prohibits the expulsion of a child in danger of genital mutilation, in the light of the European Charter of child rights; the Bundesgerichtshof’s decision of 31.1.2007 concerning on-line occult search. With regard to Italian jurisprudence, we underline the following Court of Cassation’s decisions: n. 21748/2007 of 16.10.2007 on the interruption of health treatments, when the vegetative state is irreversible, which recalls the Charter of Nice and the jurisprudence of European Courts and of several National Courts even of non-European States; n. 4211/2007 of 23.2.2007 on the right to life and to self-determination of health treatments; n. 16575/2007 of 2.5.2007 on the possibility of compensation for environmental damages deriving from pollution, in the light of Community directives; n. 13876/2007 of 14.6.2007 regarding collective dismissals; the decision of 20.9.2007 of the Roman Court of Appeal, which refers to the Charter of Nice, on time contracts; the decision of 2.1.2007 of the Biella Court regarding non discrimination of a non Community citizen; the decision of 5.7.2007 of the Administrative Court of the Veneto region about rights of homosexual couples that live together.

Oreste Pollicino, who comments on the jurisprudence coming from Eastern Europe Courts, writes about “The Lithuanian Constitutional Court and the prejudicial return to the Court of Justice”

Moreover we have included the following comments:

Valentina Bazzocchi“The EU-USA Agreement on the PNR data”

Giuseppe Bronzini “Italian experiments of multiculturalism: the decree of the Italian Ministry of the Interior Affairs on rights and duties of immigrants”

Roberto Conti “The dispossession in the light of European jurisprudence”

Antonella Di Florio “European jurisprudence on time contracts”

Emilio Gatti “Comment on the Bundesgerichtshof’s decision of 31.1.2007”

Ferdinando Lajolo “The national final judgment in front of the European Communities’ Court of Justice”

Chiara Meoli “Some considerations regarding bioethics and the protection of human rights”

Federico Olivieri “The rising importance of the European social Charter”

P.S. We also highlight the seminary which took place on 8 October 2007 in Bruxelles, organized by the European Parliament (Committee on Civil Liberties, Justice and Home Affairs), on “Judges and legislators for a multilevel protection of fundamental rights in Europe”, occasion in which the Observatory presented its web site.

At the following web address it is possible to find interesting contributions to the seminary and reports presented at a meeting of the Coucil of Europe, in September 2007, on the issue of the EU accession to the Convention of 1950:

2009/organs/libe/libe 20071008 1500 audition.htm

Written contribution by Mr. LAPINSKAS, Judge at the Constitutional Court of the Republic of Lithuania, Representative of the Court chairing the Conference of the European Constitutional Courts.

Written contribution by Mrs. TULKENS, Section President at European Court of Human Rights.

Written contribution by Mr. CARMONA RUANO, President of «Magistrats Européens pour la Démocratie et les Libertés» and President of Audiencia Provincial of Séville (Spain).

Written contribution by Mr. BAYO DELGADO, Assistant European Data Protection Supervisor (EDPS).

Working document by Mr. ONIDA, former President of the Italian Constitutional Court, on the fundamental right of non-Community foreigners to protection of family life Committee on Civil Liberties, Justice and Home Affairs.

Briefing paper by Mr. LABAYLE, Professor at the University of Pau. "The challenges of the legislator and of the national judge in the fight of the European Union against terrorism".

Briefing paper by Mr. CHALMERS, Professor at the LondonSchool of economics and political science. "Promoting and protecting Fundamental Rights in the European Union: the interaction between judges and legislators in the domain of the protection of human dignity, the right of asylum, data protection and of procedural rights in criminal matters".

Briefing paper by Mr. DE SCHUTTER, Professor of Human Rights Law at the University of Louvain (UCL) and College of Europe (Natolin). "The relations between the European Convention of Human Rights, the European Charter and the EU Member States constitutions".

Briefing paper by Mr. DE SCHUTTER, Professor of Human Rights Law at the University of Louvain (UCL) and College of Europe (Natolin). "Promoting and Protecting Fundamental Rights in the European Union: the role of national courts, of human rights defenders and of independent national human rights institutions"

Background document by Mr. DE SCHUTTER, Professor of Human Rights Law at the University of Louvain (UCL) and College of Europe (Natolin). "Accession of the European Union to the European Convention of Human rights". Note: This document was discussed at the CoE PACE meeting in Paris on 12 September 2007.

Background document by Mr. JACOBS, Professor of Law, King’s College London. "Accession of the European Union to the European Convention on Human Rights" N.B. This document was discussed at the CoE PACE meeting in Paris on 12 September 2007 by Francis G. Jacobs, Professor of Law, King’s College London

Background document by Mr. VAN DIJK, member of the Venice Commission: "The accession of the European Union/European Community to the European Convention on Human Rights"

Note: This document was discussed at the CoE PACE meeting in Paris on 12 September 2007.

Background document by Professor ROHMER of the Robert Schuman University Strasbourg. "Adhésion de l'Union européenne à la Convention européenne des Droits de l'Homme".

Note: This document was discussed at the CoE PACE meeting in Paris on 12 September 2007.